#### Allan Glennon, Respondent, *v.*Amelia G. Spencer, Individually and as Executrix, etc., of Lloyd Spencer, Deceased, Appellant, Impleaded with Milton W. Hazelton and Others, Defendants.

Third Department,

September 23, 1914.

Foreclosure — when lessee of mortgaged premises may compel assignment of mortgage —judgment, when not res adjudicata — failure to join lessee as party — when issues cannot be tried on affidavits.

On the foreclosure of a mortgage which is prior to a lease of the premises, the lessee on tendering the amount due is entitled to an assignment of the mortgage.

A motion to compel such assignment made by the lessee should not be denied because the plaintiff in an action of foreclosure offers to stipulate that the property be sold subject to such interest, if any, as the lessee may have under the lease, which gave her a first option to purchase the property if the owner deshed to sell.

Such lessee having an option to purchase is not affected by a prior judgment determining that a sale made on behalf of the owner was invalid and that a subsequent lease was also void if she was not made a party to the action. And, moreover, the defendant may insist that her rights under the lease shall not be forfeited except after trial in court; the question cannot be determined upon affidavits.

Appeal by the defendant, Amelia G. Spencer, individually and as executrix, etc., from an order of the Supreme Court, *821entered in the office of the clerk of the county of Otsego on the 8th day of April, 1914, denying appellant’s motion to compel the plaintiff to assign the mortgages in suit to her upon the payment of the amount due thereon.

*Thompson & Van Woert [J. F. Thompson*of counsel], for the appellant.

*Edson A. Hayward,*for the respondent.

Smith, P. J.:

In 1909 Hilton W. Hazelton was the owner of certain premises in the city of Oneonta. In that year he gave to one Lloyd Spencer a lease of a part of said premises for five years. In that lease it was provided that if the said Hazelton had a *bona fide*offer for said premises the said Spencer had the option to take them at the said offer, otherwise his lease should be deemed terminated. Upon the 30th of November, 1911, one Keenan, for the said Hazelton, claiming to be authorized thereto, made a contract with one Joseph Grlennon to sell to him the said premises. Thereafter, and upon the seventh day of December of that year, the said Hazelton entered into a lease of the said premises with the said Lloyd Spencer for the term of fifteen years. Later, in 1912, .the said Hazelton sold the property to other persons. Joseph Grlennon brought an action to declare this deed void, and to compel a transfer to to him, making the said Hazelton a party thereto, and also the grantees named in Hazelton’s deed to them. In that action it was declared that the deed was void; and it was also decided that this fifteen-year lease, executed December Y, 1911, was void. Spencer, however, was not a party to that action. There exist upon said premises three mortgages, two of which at least, if not the other, are prior in point of time to the lease to Lloyd Spencer. Grlennon has procured said mortgages to be purchased and assigned to his son, Allan Grlennon, who is the plaintiff in this action to foreclose the same. This motion was made by the defendant Amelia Spencer, who is the sole legatee and devisee and also the executrix of the will of Lloyd Spencer, to compel the said plaintiff to assign the said mortgages upon the payment of the amount due. After the hearing of the argument the plaintiff offered a stipulation that the prop*822erty might be sold subject to such interest, if any, as the defendant Spencer might have in the five-year lease. Apparently, by reason of the giving of this stipulation, the Special Term has denied the defendant’s motion for the assignment, and it is from this order that the defendant here is appealing.

If the fifteen-year lease be not valid defendant Spencer can claim under the five-year lease. Lloyd Spencer when told of the opportunity for sale offered to buy, as he might do under the terms of his five-year lease, but Hazelton withdrew it, and it was settled by the giving of the fifteen-year lease instead. Hazelton claimed that Keenan was not authorized to sell the premises to Glennon. While this fact has been determined adversely to Hazelton in the action by Glennon, defendant, Spencer is not affected by the decree because not a party to the action. If Keenan were unauthorized to sell, then the fifteen-year lease is valid, and upon this defendant Spencer now insists. This question should not be tried on affidavits. Defendant Spencer may with propriety insist that her rights under that lease should not be forfeited except after a trial in court. The stipulation, therefore, that the sale in the foreclosure action should be subject to such rights as defendant Spencer might have under the five-year lease was not sufficient answer to defendant Spencer’s demand of an assignment of the mortgages upon payment of the amount due. ’ That a lessee may ordinarily demand the assignment of a prior mortgage would seem to be supported by sound equity and is within authority. *(Averill*v. *Taylor,*8 N. Y. 44; *Twombly*v. *Cassidy,*82 id. 155; *Bayles*v. *Husted,*40 Hun, 376.)

Defendant Joseph Glennon has asked if an assignment be directed that he, as owner of the equity, may have leave to pay the mortgages. This he may do at any time after due date without any direction of the court.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and an assignment of the mortgages be directed upon payment to plaintiff of the amount due thereupon, and costs of the action to the time the offer to purchase the premises was first made.

All concurred.

*823Order reversed, with ten dollars costs and disbursements, and an assignment of the mortgages directed upon payment to plaintiff of the amount due thereupon, and costs of the action to the time the offer to purchase the premises was first made.